Filed 5/23/18 In re J.P. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re J.P., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

J.P.,

Defendant and Appellant.

F075081

(Super. Ct. No. 13CEJ600346-1V4)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Gregory T. Fain, Judge.
Holly Jackson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant J.P. is the subject of a Welfare and Institutions Code section 602 petition. After a contested hearing, the juvenile court found true the allegations that J.P. committed second degree robbery and assault by means likely to produce great bodily injury. J.P. was committed to the Juvenile Justice Center (JJC); however, after his fourth probation violation, he was committed to the California Department of Corrections, Division of Juvenile Justice (DJJ). J.P. contends the juvenile court abused its discretion in committing him to the DJJ. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On May 1, 2013, an amended section 602 petition was filed against J.P., alleging in count 1 that he had committed second degree robbery in violation of Penal Code section 211, and in count 2 that he committed assault by means likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(4). The amended petition alleged that both counts were serious and violent felonies.
At the contested jurisdictional hearing on June 3, 2013, through a Lao interpreter, victim Samran Thong Lee testified that on April 23, 2013, he was walking home from a store on Belmont in Fresno. He was holding a plastic bag of vegetables in his right hand and his cell phone in his left hand. Thong Lee was talking on the phone when he was hit; the blow knocked him down. The first blow broke his left arm.
Thong Lee tried to get up; when he managed to do so, his face was bloody. He had difficulty seeing his attackers because his glasses “fell down” when he was knocked to the ground. There was at least one blow to his head and he was unconscious for a time. After the attack, his cell phone and groceries were gone. Thong Lee was able to tell an officer that his attackers were two males.
A woman came over to help him after the attack. Police interviewed Thong Lee in the hospital and returned his cell phone at that time.
Corina Bautista testified through a Spanish interpreter. She witnessed the attack on Thong Lee. Bautista saw “two kids hitting something” and at first, “thought they were playing around.” Bautista was about 50 to 60 feet away. Then Bautista noticed the two were kicking a man on the ground, and she understood they were not playing and “it was real.”
Bautista saw both of the minors kick Thong Lee; he was kicked in the head and midsection. The minors kicked the victim for one to two minutes. The minors were “kicking with force” and the man on the ground was trying to “cover himself up as much as possible.” After the attack, the minors ran away toward an alley.
Immediately after the attack, Bautista took pictures with her cell phone. She managed to capture a picture of the two minors involved in the attack. When Bautista was contacted by police, she showed them the pictures she had on her cell phone. Bautista gave a description of the attackers to Officer Jeremy Kuckenbaker.
Officer Brian Sturgeon responded to a call about an assault on Belmont. Officer Gregory Catton also responded. Catton effected a traffic stop of a vehicle; J.P. was inside the vehicle. J.P. was placed under arrest at the scene of the attack. While in the back seat of the patrol vehicle, J.P. provided information on where his older brother, Joe, could be located. Joe was arrested and both he and J.P. were transported to juvenile hall. Joe had Thong Lee’s cell phone on him at the time of his arrest. At juvenile hall, officers found the SIM card to Thong Lee’s phone in Joe’s pocket.
At the conclusion of the evidentiary portion of the contested jurisdictional hearing, the juvenile court found that although J.P. was under the age of 14 years, he knew the wrongfulness of his conduct, within the meaning of Penal Code section 26. The juvenile court found the allegations of the amended petition to be true.
At the disposition hearing on June 17, 2013, the juvenile court commented “with this sort of case hanging over your head,” J.P. would be a “Stage III or some high stage.” The juvenile court also stated to J.P. that the “impression I get is you don’t follow the rules” and J.P. agreed with that comment. The juvenile court adjudged J.P. a ward of the court and ordered him placed on probation at the JJC for a period of 210 days, where he was to obey all rules and regulations, and comply with terms of probation. The juvenile court set eight years as the maximum period of confinement if he were committed to the DJJ.
A section 777 petition was filed on February 26, 2014, alleging J.P. had violated the terms of his probation by failing to contact probation, failing his treatment program, failing to obey curfew, and failing to attend school. J.P. admitted violating his probation by failing to obey curfew and failing to attend school. At the disposition hearing, the juvenile court ordered J.P. committed to the JJC for an additional 90 days.
On September 9, 2014, a second section 777 petition was filed alleging J.P. had violated his probation. J.P. admitted violating his probation by being suspended from his treatment program, failing to comply with curfew, and failing to attend school. At the disposition hearing, the People requested J.P. be committed to the DJJ; minor’s counsel requested a JJC commitment.
The People argued that J.P. had spent over a year in custody at the JJC and it had “done nothing to change his behavior.” The People opined that the recommendation of 20 more days at the JJC was “absurd” and a DJJ commitment was appropriate.
The juvenile court stated it was not inclined to commit J.P. to the DJJ at this time, but felt a 120-day commitment to the JJC was appropriate because J.P. “didn’t listen to me last time.” The juvenile court told J.P that with every violation, “it’s going to get worse” and eventually the juvenile court would commit him to the DJJ if violations continued. J.P. was committed to the JJC for 120 days.
A third section 777 petition was filed on May 14, 2015. J.P. admitted that he violated probation by failing the treatment program, and failing to obey curfew by leaving home and failing to return.
At the June 1, 2015, disposition hearing, the People requested a DJJ commitment. The probation department was willing to provide J.P. with “one last opportunity to change his behavior.” The juvenile court noted that J.P. had “earned a ticket” to the DJJ, but was going to be provided with one last opportunity. J.P. was committed to the New Horizons program for 365 days and instructed to “participate in that program as directed by probation.”
On June 24, 2016, a fourth section 777 petition was filed alleging J.P. failed to contact probation and failed to report to probation when notified. J.P. had been out of contact with probation since May 2016, and failed to report when instructed to do so in June 2016. On January 10, 2017, J.P. admitted the probation violations.
The disposition report recommended a commitment to the DJJ. The report noted J.P. had failed to rehabilitate when committed to local programs and that local alternatives had been exhausted. The probation report also opined that J.P. had demonstrated he could be successful in a structured setting.
A disposition hearing was set for January 25, 2017. This time, the recommendation was for a commitment to the DJJ. The juvenile court noted for the record that it had read and reviewed each of the reports prepared for the four probation violation hearings. Minor’s counsel argued for another grant of probation.
The People argued that a commitment to the DJJ was in J.P.’s best interests because it was a locked facility, and he would not “be roaming around.” The People also opined that J.P. would have some consistency and “he can get that education and that rehabilitation” in the DJJ facility. J.P. would have the ability to get a high school diploma and participate in “intense programs” that would give him “a strong foundation” and “intense rehabilitation” because local programs were not working.
The probation department opined that J.P. had been given “every opportunity” to “get him back on track.” Probation felt there was no other alternative to a DJJ commitment because J.P. had been on probation four years; had failed the New Horizons program; and “we’ve just run out of alternatives.” The probation officer noted J.P. had been warned when he was placed at New Horizons at his last probation violation hearing, that if he violated again, he would be sent to the DJJ.
In framing a disposition, the juvenile court noted the facts were “horrific” and this was an “awful, awful crime.” The victim was older, suffered a broken arm, extensive suturing to his face, bruised ribs and shoulder, and abrasions from the attack. J.P. was screened for the DJJ in 2013, but because of his age was given an opportunity to rehabilitate locally. The juvenile court noted that while in local programs, J.P. failed to attend school regularly, was leaving home and not returning, and failing treatment programs.
The juvenile court stated, “I am convinced that all local less restrictive options available have been exhausted.” The juvenile court found that another local commitment would be “inappropriate,” J.P. “can benefit from the various programs” provided by the DJJ, would receive an education and be able to get a diploma, and benefit from the counseling and structure. The juvenile court weighed the factors and selected a maximum period of confinement at six years, less than the possible statutory maximum of eight years.
J.P. filed a notice of appeal on January 26, 2017.
DISCUSSION
J.P. contends the juvenile court abused its discretion in committing him to the DJJ. We disagree.
“The juvenile court’s decision to commit a minor to the [DJJ] will be reversed only when an abuse of discretion has been shown. [Citation.] The evidence, however, must demonstrate probable benefit to the minor from commitment to the [DJJ] and that less restrictive alternatives would be ineffective or inappropriate.” (In re George M. (1993) 14 Cal.App.4th 376, 379; In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.) “An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395 (Michael D.); In re Lorenza M. (1989) 212 Cal.App.3d 49, 53; In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.)
In determining whether there is substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the juvenile court law. (Michael D., supra, 188 Cal.App.3d at p. 1395.) “Under [Welfare and Institutions Code] section 202, juvenile proceedings are primarily ‘rehabilitative’ [citation], and punishment in the form of ‘retribution’ is disallowed [citation]. Within these bounds, the court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public.” (In re Eddie M. (2003) 31 Cal.4th 480, 507.)
“In 1984, the Legislature amended the statement of purpose found in section 202 of the Welfare and Institutions Code. It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public. [Citation.] The significance of this change in emphasis is that when we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind. Such was not the case before 1984.” (In re Lorenza M., supra, 212 Cal.App.3d at pp. 57-58.)
Thus, the juvenile court law now recognizes punishment as a rehabilitative tool (§ 202, subd. (b)), and emphasis has shifted away from the tradition of a primarily less restrictive alternative oriented towards the benefit of the minor, to the express “protection and safety of the public.” (§ 202, subd. (a); Michael D., supra, 188 Cal.App.3d at p. 1396; In re Asean D. (1993) 14 Cal.App.4th 467, 473 (Asean D.).) The new directive of protecting the public has led reviewing courts increasingly to uphold more stringent dispositions, including commitments to the DJJ in the first instance. (Asean D., supra, at p. 473.)
The statutory scheme “ ‘contemplates a progressively restrictive and punitive series of disposition orders … namely, home placement under supervision, foster home placement, placement in a local treatment facility and, as a last resort, [DJJ] placement.’ ” (In re Aline D. (1975) 14 Cal.3d 557, 564.) Nevertheless, “it is clear that a commitment to the [DJJ] may be made in the first instance, without previous resort to less restrictive placements.” (Asean D., supra, 14 Cal.App.4th at p. 473; In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)
While the DJJ is considered a final treatment resource, “there is no absolute rule that a [DJJ] commitment should never be ordered unless less restrictive placements have been attempted.” (In re Ricky H. (1981) 30 Cal.3d 176, 183.) The record need only show probable benefit to the minor from commitment to the DJJ, and that less restrictive alternatives were considered and rejected. (In re Pedro M., supra, 81 Cal.App.4th at pp. 555-556.)
In determining the appropriate disposition, the court must consider not only the best interests of the minor and the public, but also public protection, the minor’s personal accountability, and “the broadest range of information” pertinent to the minor, “especially his past behavior and performance while a ward.” (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684-1685; § 202, subds. (a) & (b).) The court may also consider the circumstances and gravity of the offenses perpetrated by the minor. (§ 725.5; see In re Robert H., supra, 96 Cal.App.4th at p. 1330.)
Here, the juvenile court noted that J.P. participated in serious crimes. The victim was older, suffered a broken arm, extensive suturing to his face, bruised ribs and shoulder, and abrasions from the attack. Despite the seriousness of the crimes, because of his age, J.P. was placed in progressively longer and more restrictive local custody commitments. Yet J.P. continued to violate probation by being expelled from or failing treatment programs; not regularly attending school; leaving home and not returning; and failing to report to and maintain contact with probation.
Progressively more restrictive and longer local custody placements had been tried and failed to rehabilitate J.P. J.P.’s past behavior while in local custody and on probation was not acceptable, thus the four sustained section 777 petitions setting forth probation violations. As the juvenile court noted, there were no more local options available.
The record also discloses the commitment to the DJJ would benefit J.P. The DJJ would provide J.P. with the opportunity to earn a high school diploma, receive counseling, and participate in treatment programs in a structured setting. As reflected in the probation report, J.P. had told the probation officer that his latest probation violations were incurred because he chose not to go home to his mother upon release from local commitment, but instead to live with a girl he met. J.P. acknowledged that when released from a local commitment, he “does not think about what he needs to do for probation.” J.P. also told the probation officer he did not want to go to school. Clearly, in a structured setting such as the DJJ, J.P. will have to focus on completing high school and treatment programs.
J.P. argues the juvenile court abused its discretion because it “is reasonable to believe” the juvenile court thought the DJJ was the “only forum” in which J.P. could receive his high school diploma. No such assumption is reasonable based upon the record. The juvenile court clearly understood that J.P. could receive a high school diploma in a local setting; J.P. was given that opportunity but refused regularly to attend school.
The record reflects that J.P. was placed in less restrictive settings than the DJJ at disposition and after the first three probation violations; he failed to complete treatment programs or attend school regularly in less restrictive settings and continued to violate probation. After the fourth probation violation hearing, the juvenile court found another local commitment was inappropriate and committed J.P. to the DJJ, finding that J.P. would benefit from the structure, counseling, treatment programs, and educational opportunities available at the DJJ.
The juvenile court did not abuse its discretion in committing J.P. to the DJJ.
DISPOSITION
The disposition order committing J.P. to the California Department of Corrections, Division of Juvenile Justice, is affirmed.